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In the interest of…
  • Feb 13, 2020
  • Latest Journal

In every profession there is a major governing body, and within that governing body there are rules and principles that one has to abide by.
In the field of dentistry, the prevailing rule is that the patient’s interests come first.
To expand this into the expert witness field, it is essential to ensure one must put the court’s interest above all.

However, and despite best interests, it is not uncommon to hear that someone, somewhere completely ignored this cardinal rule and forgot that an expert witness supposed to be serving the court first and foremost with their knowledge and expertise.
Pressure from lawyers for various reasons, or lack of legal experience are among some of reasons that could lead to this lack of judgment as to what the expert is serving.

Remaining wholly non-partisan and acting only for the courts is the duty of every expert and drawing a distinct line under this is paramount so that there are no conflicts of interest.

On a recent major London conference for expert witnesses, this was highlighted on several occasions (backed with real cases) and needless to say, the problems kept being repeated by some experts, which can only indicate the frequency that it might be occurring.

That is why training is crucial. Training in in legal matters such as what the courts want to know, and how to write reports and if you are one of the “lucky” experts standing in front of a judge one day, knowing what to do and how to present and answer counsel’s questions, can all be done in the utmost professional manner for the benefit of everyone, especially the court.   

Legal disputes can be complex, requiring specialist experts to give their honest expert opinion and evidence, however, some experts can get carried away in making bold and sometimes misleading statements, resulting in their evidence becoming worthless in court and go against the oath they took, and finally leading to the entire expert’s opinion and evidence being disregarded by the court.
A very unfortunate position for any expert to find themselves in.
The question is, did they brought it on themselves or despite the expert’s best intensions, this was a compound effect of many little things that went wrong and led to the expert being in such an unfortunate position?
In addition, ignoring courts instructions in a particular matter, can irritate the judges, causing damages to the expert beyond repair.

A quick overview and brief reminder highlighting problems that an expert witness may knowingly or unintentionally find themselves in are identified in the following points and based on real historical cases and their unfortunate outcome for the expert.

Industrialising report writing, to the extent that the reports seem copy and paste, with no real substance or evidence that the case and examining the evidence was given enough time and attention, let alone expert opinion.
Experts not understanding or complying with their duty to the court and the requirements of CPR 35, PD 35. Their duty should be ultimately to the court and not as an advocate for the party that has appointed them.
Under CPR there is no duty of an industry expert being trained in report writing or in presenting evidence in court, however, good training in how to be an expert witness can prove very valuable, and perhaps less mistakes will occur, as an industry expert does not necessarily makes a good and compliant expert witness.
Expert evidence needs to be based on facts and reliable clinical practice, and conclusions needs to be on proven facts and not assumptions, allegations or agendas from the instructing party, and to make conclusions as transparent as possible, experts need to provide an explanation of the methodology showing how they reached the conclusions to show they have been competent, honest and transparent.
An expert witness should avoid being ‘coached’ by lawyers and not to rehears and practice in giving evidence in a certain way, as this could lead to persecution for preventing the course of justice by allowing to be coached.
It is good practice that every report should be written in such a way that if the experts end up in the witness box, they are not contradicting themselves, which could look really bad with dire consequences.
An honest, professional and reliable opinion does not need to change.

 
In conclusion, as an expert one has to be mindful of one’s role and duties.
There is a grey area ‘danger zone’ between the evidence and the facts the expert is relying upon to form his professional opinion/testimony, and “Everything Else” and this grey area is where the opposing side wants the pull the expert towards it,  and is best to be avoided.
Being aware of this grey zone at all times, and avoiding it from the beginning can guard the expert against getting there in the first place, in another word, creating a firewall, and always remembering that every witness in any legal forum, must tell the truth , the whole truth and nothing but the truth.

 

Dr. Diyari Abdah
DDS DDS MSc ImpDent MBA CUBS
Adj. Clinical Assistant Professor